ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS)
Docket ID: APHIS-2011-0003, Animal Welfare; Retail Pet Stores and Licensing Exemptions Final Rule
September 18, 2013 the final rule was published in the federal register. The rule goes into effect November 18, 2013. Animal Care Will Host Webinars to Discuss the Retail Pet Store Rule. USDA Animal Care will host a series of Retail Pet Store Rule webinars in November and December. You can sign up to participate in any or all of these webinars to talk directly to APHIS staff about how this rule may or may not affect your business. REGISTRATION INFO HERE
Webinar slides (without audio) from November 7 and 14 are now posted at the APHIS website. Transcriptions of these webinars are being posted on this page under the heading FILES AND RESOURCES ON NEW APHIS RULE.
The FINAL RULE is 91 pages long and is posted at the APHIS website. CLICK HERE TO ACCESS THE FILE
APHIS posted Regulatory Impact Analysis and Final Regulatory Flexibility Analysis. This document is a revised version of the initial analysis published in April 2012 along with the Rule.
APHIS also posted a Question and Answer sheet discussing the final rule. This sheet is NOT completely accurate and should be used only as a very basic guide.
Checklist: Does APHIS' New Retail Pet Rule Impact Me?
Comments submitted in 2012 are still available for review.
APHIS published the Final Rule September 18, 2013 which revises the definition of "retail pet store" and brings historically exempt retail pet sellers under the Animal Welfare Act (AWA) licensing and regulation. The new definition of retail pet store means a place of business or residence where the seller, buyer, and animal are physically present in the same location. The transaction does not have to take place at the seller’s home. Previously, APHIS did not regulate any pet sales made directly to the retail consumer.
WHO MUST BE LICENSED?
A USDA License is required for a Dealer, defined as any person who buys, or sells, or negotiates the purchase or sale of animals for pets for one of the following 6 uses:
Research, teaching, testing, experimentation, exhibition*, use as a pet. A Dealer is also anyone who buys or sells dogs at the wholesale level for hunting, security, or breeding purposes.
* Exhbition means any person (public or private) exhibiting any animals to the public for compensation (carnivals, circuses, animal acts, zoos, and educational exhibits, etc.)
SIGHT UNSEEN SALES. All breeders who sell animals sight unseen and who maintain more than 4 breeding females must be licensed by the USDA. This includes the following list of pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets.
FLOW CHART- Do you need a license?
In general, APHIS says this rule is driven by purpose of breeding and method of delivery for the sale; and the stated goal is to end sight unseen sales. Since most breeding programs do not fall into neat categories, this creates many gray areas of uncertainty. APHIS maintains that because of the varied situations, they will need to make case-by-case decisions regarding licensure.
Of concern is the interpretive definition of a breeding female. APHIS states it must be assumed that any intact female or any female capable of breeding may be bred. Determination of whether or not a female on your property counts as a breeding female is solely at the discretion of APHIS inspectors. If you are trying to remain under 4 breeding females for the purpose of being able to ship, any intact females maintained on your premise for any length of time, such as for training or breeding, count toward the total number of females.
Small scale breeders who are not operating as pet businesses may now be regulated. Breeders working away from home could be subjected to fines by APHIS if they are not home for unannounced inspections. Once licensed these small breeders be may be the subject of activist harassment and Freedom of Information Act requests.
Anyone who maintains four or less breeding females of the same species and sells only the offspring of those females may sell pets either at retail or wholesale and may either ship or sell face-to-face without a license.
Any person who sells dogs at retail for breeding, hunting, security, or as working dogs. A person who sells and ships animals at retail for breeding purposes is not considered a dealer and is not subject to licensing. Such persons could continue selling at retail and shipping animals sight unseen as long as the animal is used ONLY for breeding, hunting, working, or security purposes. APHIS has now stated they are aware that some people will claim to be selling dogs for these purposes in order to circumvent regulation. Should they become aware of too many pets being advertised and sold they will investigate to determine the true nature of your business.
Any person who sells or negotiates the sale or purchase of any animal except wild or exotic animals, dogs, or cats, and who derives no more than $500 gross income from the sale of such animals.
Rescue groups that participate in face-to-face transactions such as off-site adoptions are subject to public oversight and therefore do not need to be licensed.
Any person who meets the definition of Retail Pet Store is also exempt.
Retail pet store means a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the
animal prior to purchasing and/or taking custody of that animal after purchase, and where only the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits,
guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchillas, domestic ferrets, domestic farm animals, birds, and coldblooded species. In addition to persons that meet these criteria, retail pet
store also includes any person who meets the criteria in § 2.1(a)(3)(vii) of this subchapter.
NOTE. The final rule has raised many additional questions for breeders since most breeding programs do NOT fall into neat categories but encompass multiple levels of competition and types of sales; hunting dog kennels have variations as well with dogs used for more than one purpose. We are working to provide additional clarification and will post when information becomes available.
Associated Dog Clubs of New York State (ADCNYS) is an AKC Federation of Dog Clubs with 56 member clubs in New York State. ADCNYS is a legislative advocacy group, but is now embarking on litigation on behalf of pet breeders whose activities depend on the ability to maintain sound breeding programs and practices. It is felt that opposing this rule on a legal basis is the best strategy for all clubs, organizations, businesses and individual breeders/owners at this point. The fact that the changes are in confusing language and there were flaws in the procedure of amending the rule provide the best chance of stopping its implementation by legal injunction.
STATUS OF FILING FOR INJUNCTION
ADDING NEW LICENSEES
The Rule is effective 60 days from publication in the Federal Register, November 18, 2013. APHIS will begin to identify potential licensees by reviewing breeder marketing and websites and via public complaints. After the effective date of November 18 APHIS will begin to mail out application packets to those who have requested them.
Bengal Cat Society Flyer. Everyone Has The Right To Choose
FILES AND RESOURCES ON NEW APHIS RULE
Docket No. 2011-003
Animal Welfare Act Integrated
TRANSCRIPT APHIS TELECONFERENCE MAY 10 FOR PROPOSED RULE
Comments from Cat Fanciers Association
AKC. USDA/APHIS Finalizes Rule Impacting Pet Breeders
AKC USDA/APHIS Regulation Resource Page
Transcription of the APHIS Conference Call September 10, 2013 announcing final rule
*NEW* Living with USDA Licensing
AKC transcription of call between APHIS and Sheila Goffe
Flow Chart for Licensing for Cat Fanciers from TICA, CFA
United Kennel Club. How will the New USDA Changes Affect You?
*New* American Kennel Club letter to APHIS October 24, 2013
*NEW* Transcription of APHIS Webinar November 14, 2013. How will USDA Implement the Retail Pet Store Rule
*NEW* Transcription of APHIS Webinar November 21, 2013. How will USDA Implement the Retail Pet Store Rule
APHIS continues to maintain that the benefits from this rule will outweigh any costs. We disagree and believe that AHPIS has continually underestimated the numbers of breeders who will be impacted by this rule as well as cost to both breeders and the agency for implementation.
In the original 2012 analysis APHIS suggested 1,500 dog breeders would be newly licensed. This final rule summary notes, “There is a great deal of uncertainty surrounding the number of facilities that will be affected by this rule, as we acknowledged in the proposed rule, and as evidenced in the public comments.” According to the new APHIS estimate, there could be as many as 15,000 online breeders who would likely be affected by this rule. APHIS maintains that only 75% of the pet breeders would sell some pets sight unseen and estimate the final number of new licensees would drop to approximately 4,640. However this still doubles their current workload.
In 2012 APHIS also stated that increasing the number of breeding females from 3 to 4 would possibly reduce current license holders by 31%. The final rule summary states that APHIS expects the number of current licensees that will fall below the new exemption threshold will be very small.
APHIS also acknowledges that neither the number of entities that will need to make changes nor the extent of those changes is known. Therefore, the overall cost of structural and operational changes that will be incurred due to this rule is also unknown. We believe APHIS has consistently underestimated the cost required for pet breeders to comply with this rule.
In the final rule summary APHIS maintains that their plan to incorporate newly affected entities into the existing regulatory system using a phased implementation for conducting initial prelicensing inspections and compliance inspections eliminates the need for additional personnel.
For the past several years, the APHIS budget has been shrinking; since 2010 the budget has decreased by approximately $87 million, or roughly 10 percent. In a recent February meeting, APHIS administrators discussed agency changes in response to reduced funding and how the agency plans to preserve core functions while challenged by annually decreasing budgets. The FY 2012 federal Budget contained appropriation for APHIS programs of $837 million, which was 8.3% or $76 million lower than the amount appropriated for APHIS in FY 2011.
Budget cuts are likely to continue into the foreseeable future. The President's 2013 budget request submitted in February to Congress calls for a decrease in APHIS funding by an additional $54 million, or 6.6 percent.
FY 2014 USDA Budget has been released and again there is little revision to the current budget. The APHIS 2014 budget request of $798 million is an overall reduction of $24 million from 2013. Money requested specifically for Animal Welfare activities and enforcement is $29 million, a requested increase of only $1 million which is split between Animal Welfare and Horse Protection. Increase for Horse Protection requested to $893,000 from current $500,000; therefore leaving virtually no additional funds to enact or enforce increased regulation.
SAOVA remains opposed to this costly expansion of regulation that invades the privacy of American homes in order to establish standards for pet care that are not
compatible with residential environments.
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